"Fiat money is backed by men with guns; Bitcoin is not. So why should this thing have any value?"--Uber statist economist Paul Krugman.

Friday, December 21, 2012

What does the 2nd Amendment mean?

Knowing better than to believe that anything I write on this (or any other) subject would be perceived as the last word, it is nonetheless important to realize that there is little serious debate among historians about what the Second Amendment means, or what it guarantees, or how that meaning has been changed by constitutional amendment and/or judicial action.

You really only have to understand four things; but first, here is the required restating of the Amendment's text for the one or two people who may have been living in a cave in Borneo whilst all the faux debates were going on:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

OK, here's what you need to know:

1. "Well regulated" is 18th Century English for "disciplined" or "drilled." The term does NOT refer to the State (either state or State) controlling the militia, it refers to the level of training necessary for a militia to function.

From Federalist #29 (Hamilton): "The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss."

Among military historians of the 18th and 19th Century this is not in the slightest a controversial understanding--it is common usage.

2. "Necessary for the security of a free State" has to be interpreted in the historical context of the times. The Framers were clearly worried about the threat to liberty posed by "a standing army," and believed for a brief period (from about 1785-1796) that it was practical to place the foremost reliance for the defense of the country in the hands of state-organized and common militias.

Again, from Federalist #29 (Hamilton): "Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper."

Apologizing for the length of the quotation, there are two significant items here.

First, the argument is that only the existence of a "well-regulated militia" can prevent the Federal government from having to organize "a standing army" to defend the country. I say this again: the purpose of having a "well regulated militia" was "to render an army unnecessary."

Second, Hamilton argues (as did all the Federalists) that in order for the militia to perform in lieu of a standing army, its training had to be controlled by the Federal government. That is implied in the passage quoted above, and made explicitly clear elsewhere in Federalist #29:

"THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."

The check on standing armies, as Hamilton and the rest of the Framers saw it, would be in the States' power to name the officers of those militias and to conduct the routine training of those militias "according to the discipline prescribed by Congress." If you need further evidence, try checking the contemporary state constitutions. Maryland's 1777 constitution actually takes the time to lay out this argument in some detail:

XXV. That a well-regulated militia is the proper and natural defence of a free government. XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power. XXVIII. That no soldier ought to be quartered in any house, in time of peace, without the consent of the owner; and in time of war, in such manner only, as the Legislature shall direct,XXIX. That no person, except regular soldiers, mariners, and marines in the service of this State, or militia when in actual service, ought in any case to be subject to or punishable by martial law.

What the Framers were attempting to do was execute an ultimately unsuccessful attempt to Federalize (in the sense of shared authority between National and State governments) the defense of the United States in such fashion as it would not lead to despotic control of a standing army by the National government. As we shall see below, this experiment proved to be a dismal failure.

3. "The right of the people to keep and bear arms" was a fundamental right, and was intended for not only the defense of the country and personal defense, but also as a check on government tyranny, but (and here is the critical point) that right was vested in the State constitutions, not the US Constitution.
Let's take a detour through a few of the Revolutionary and Constitutional period state constitutions:

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

XVIII. That the people have a right to bear arms, for the defence of themselves and the State: and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power.

Some State constitutions put a more limited construction on this right:

Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.

XVII. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.

((An aside: just in case you were wondering, even when States later rewrote their Constitutions, they usually preserved the right to bear arms for personal defense:))Delaware Constitution (1897)

§ 20. Right to keep and bear arms.Section 20. A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.

Many other State constitutions did not, however, mention the right of bearing arms "for the defense of themselves" at all. The conclusion through viewing the contemporary state constitutions is pretty clear to most historians: the fundamental right to bear arms was guaranteed or circumscribed by the State, not the Federal government. That statement in the 2nd Amendment--"the right of the people to keep and bear arms, shall not be infringed"--was a statement intended to mean that the Federal government could not modify or reduce that right--only the States could do so. It was not, when it was written, a direct guarantee of individual rights to bear arms because that was considered the province of the States.

However, both the 14th Amendment and several Supreme Court decisions in the 1930s changed that. The 14th Amendment functionally moves the primary responsibility for the protection of individual and civil liberties from the States to the Federal government, and in the 1930s the courts decided once and for all that the Bill of Rights overrode State constitutions to provide direct protections to citizens from ALL levels of government.

Here's where it gets a little tricky. After the 1930s, the Bill of Rights was established as the basic level of protection enjoyed by all citizens of the US against all levels of government. But while the States cannot reduce the guarantees in the Bill of Rights, they can increase them. Thus the enhanced privacy provisions of the Alaska State Constitution have been long been used to prevent police from arresting people for using small amounts of marijuana on the their private property. And--going back to the current Delaware constitution cited above--while there may be no explicit right to bear arms for personal defense in the US Constitution, there certainly is one in Delaware. (And in most other states as well.)

Unlike the 1st Amendment, the 2nd Amendment language (which was originally intended as a check on Federal power against the States) did not translate as well when it became a guarantee of individual rights. It looks muddled, because it is now being used an interpreted as something different than the original intent, thanks to the 14th Amendment and the Supreme Court.

(This is a legal process of changing meanings that goes on all the time. The provision in the original US Constitution that forbid the Feds from stopping the importation of slaves prior to 1808 was actually twisted around by Thomas Jefferson and James Madison in the Virginia and Kentucky Resolutions to refer to general immigration law, not the importation of slaves. During the 1880s, Associate Supreme Court Justice Stephen Feilds wrote a series of decisions on the 14th Amendment that converted it from a civil rights amendment to a grant of full, Constitutionally protected personhood for corporations. So it goes.)

So, ironically, when the Constitution was written, it was not intended to be the primary guarantor of a citizen's right to bear arms for personal defense (that role was left to the States) and it only became that primary guarantor much later and almost by accident.

4. The reliance on militias as a functional alternative to a standing army was a failed experiment, and was effectively dropped (in the sense that Hamilton argues for it in Federalist #29) by the time we reached the American Civil War.

It has become almost heretical these days to point out that large sections of the original US Constitution simply did not work as intended. The idea that the candidate receiving the second highest vote total for President should become Vice-President was quickly revealed to be a BAAAAD idea, and changed within less than two decades. The section of the original Constitution on the Supreme Court and the Federal court system was so hopelessly botched that our Federal courts actually run off the Judiciary Act of 1789 rather than the US Constitution, and the whole premise of judicial review (declaring laws unconstitutional) is nowhere in either of those documents. Chief Justice John Marshall simply made it up and made it stick.

Militias proved very quickly to be an inadequate reliance for national defense, first in the Whiskey Rebellion, then again in the War of 1812. The Nat Turner uprising in Virginia in 1831 turned most Southern militias from organizations committed to defense from external attack into organizations dedicated to suppressing slave revolts. The attempt by both Virginia and Tennessee to use their militias as the building blocks for their armies during the first months of the Civil War turned out to be abysmal failures. A few units, like some New York artillery militia units, would function well in that war, but their heritage was as private militia companies, not State militias, and they were the exceptions to the rule. After the Civil War, most National Guard units got their start as being the strong-arm forces that State governors used as strike-breaking forces against labor unions. In the Philippine War, World War 1 and World War 2 it was publicly acknowledged and planned for that National Guard units had to be almost completely retrained by the active-duty army before they were competent to deploy. (That truth has remained for combat arms units in the modern National Guard heading for Desert Storm and later conflicts until those units had each individually acquired tactical expertise and a cadre of veterans.)

Instead of relying on militias as a counterpoint to a standing army, during the first half of the 19th Century the United States substituted a much stronger subordination of military to civil power than is found in most nations, and adopted the cultural value that active-duty officers should not be involved in politics. Moreover, our soldiers swear their oaths to the Constitution rather than to the government; it is an essential difference.

OK if you have read this far you deserve some sort of conclusion, and here it is:

There is a right to keep and bear arms for personal defense, but that right derives originally from the States, not the Federal government. The Feds were only originally enjoined not to mess with rights that the State granted.

The whole "militia vs standing army" argument was resolved, for all practical purposes, by 1865 at the latest, with the close subordination of the military to civilian authority and the culture of apolitical officers.

The 14th Amendment and the Supreme Court unfortunately muddied the waters when reinterpreting the Bill of Rights as basic protections enjoyed by all citizens against ALL levels of government.

Look at the performance of the militia outfits in both of those conflicts; in the War of 1812 militia not in fortifications faired poorly every time they faced regular troops. The performance was bad enough to cause the major push for West Point to become the nucleus for creating a professional officer corps. During the Whiskey rebellion the actual armed combat was minimal to nil, but the lack of discipline of the militia troops and their looting as they crossed PA convinced a lot of people that this was a really bad idea.

I was aware that the Pennsyltuckian militia engaged in some looting against tax supporters and wealthy citizens, but did not know that the federalized militia looted on their way out west. I'd like to read more on that if you can point me in the right direction.

Sam: I will get you a reference but it will be late next week; traveling.

Delacrat: sort of, and sorta not. In Virginia there are the National Guard and Reserve units that fall into the category you mention. There is also a Virginia State Guard, which is composed of unpaid volunteers raised by the State. They are mostly older. They wear uniforms and they are (among other things) responsible for taking over all the Guard armories if the total Guard is ever Federalized and deployed. But they are not issue weapons, nor are they allowed to bring their own weapons into the armories. This is as close as you get to the old state militias.

There was another class of, effectively, private militias in the colonial, Revolutionary, and even Civil War eras--private companies usually raised by some wealthier patron. In theory--alibeit tenuously--modern militias would be seen as the descendants of those early private militias, which could be accepted into State service. But it would be a stretch.

Other than that, however, you are correct: there is no militia in existence today such as the Constitution discusses.

"It has become almost heretical these days to point out that large sections of the original US Constitution simply did not work as intended."

Is it also heretical to say "that is why they included an amendment process."?

I disagree w/ you on the electoral college. almost all of the framers were intimately familiar with the british & french parliaments and the politics of faction. they warned us against it, implying that they understood that it would be a common occurrence for the Pres. and VP to be from opposing parties.

i believe that the original design of the Electoral college was intentional as a check on the power of the President, since the body confirming his appointments would be controlled by the opposition party; and that the 12th amendment was almost as bad an idea as the 17th.

Article III stated that Congress would legislate the form of the Judiciary in sec 1, clause 1. it was never intended to be a complete description of the judicial branch. the botch was the failure to more clearly circumscribe the power of the courts to make alterations to the written constitution.

And you need to take anything that Hamilton wrote in the Federalist w/ lots of grains of salt. He was not only treasonously plotting ways of restoring the british monarchy at the same time he was agitating to replace the Articles of Confederation; he blew off most of the Constitutional Convention because he thought his fellow delegates were too "pigheaded", so he is not exactly in the best position to explain what the intent of any given part was.

Then he caused the Whiskey Rebellion by successfully lobbying for a tax that he had explained at length would be impossible in the Federalist.

Your analysis does not go far enough Steve. Even If the 2nd Amendment did not recognize and protect an individual RKBA, the 9th would.

By its construction, the 1st Amendment very clearly applied only to the federal government, the remaining 9 as written (and in conjunction w/ Art VI, Cl 2 & 3) were binding on both the federal government and the states. This was not an issue until after the Civil War because the State constitutions almost invariably offered broader protections than the federal constitution.

After the Civil War however, some states claimed that certain persons had no rights under either constitution because they were not citizens. a careful reading of the U.S. Bill of Rights will show that this is just silly, Even so, it led to the power grab known as the 14th Amendment, and the federal government eventually started treating everyone (not just the "persons" who were made citizens by the 14th) as subjects w/ privileges rather than sovereigns with Rights.

but anyway, anyone in early America who knew anything about law (and that was a surprisingly large percentage of the population -- so large in fact that the british colonial governors & magistrates considered it a serious problem) understood that individual RKBA was a longstanding common law right of all free men that preceded all charters and constitutions.

It was reaffirmed by every version of the Magna Carta, starting at Runymede, as well as the Charter of the Forest (1217), and the Declaration of Rights (1689).

Given that the first battle of the Revolutionary War was fought over an attempts by the british to seize guns from the colonists, it is patently absurd to claim that after declaring independence the fledgling governments would try to abridge this fundamental right.

@Tom " State constitutions almost invariably offered broader protections than the federal constitution."

No, they didn't. Some recognized a right to bear arms to defend the state, some recognized a right to self defense. Some did not address the issue at all.

@Tom "the remaining 9 as written (and in conjunction w/ Art VI, Cl 2 & 3) were binding on both the federal government and the states." No, not completely. There are multiple examples of states between 1789-1865 imposing significantly greater restrictions on personal liberties than the states.

@Tom "anyone in early America who knew anything about law ...understood that individual RKBA was a longstanding common law right of all free men that preceded all charters and constitutions." I did not deny or contradict that fact. You actually make my point here. The 2nd Amendment was not necessary to prevent the individual states from depriving people of the well-known common law right; it was designed to prevent the National government from removing the ability of the states to have an organized military force in the militia.

You are somewhat misreading the Delaware Constitution. Delaware had no explicit constitutional protection of RKBA until 1987, at which time the General Assembly completed an amendment enacting one of the best in the U.S.!

The Delaware Declaration of Rights (1776) had no mention of RKBA, but did have a "Quaker clause" which except for a few commas was identical to Pennsylvania's, and it had Militia, Standing Army and "Civil authority over the Military" clauses that strongly influenced Maryland's and the US's constitutions.

The wording of these implies that RKBA was considered a fundamental right.

There was some discussion about adding RKBA to Delaware's Constitution of 1792 but it was deemed unnecessary and voted down. The members of the convention also voted to remove the Militia clause.

There was implicit protection of RKBA in the 1776 Delaware constitution (which was adopted as a separate document after the Delaware Declaration of Rights) in the form of Article XXV which provided that

"The common law of England, as well as so much of the statute law as have been heretofore adopted in practice in this state, shall remain in force unless they shall be altered by a future law of the Legislature, such parts only excepted as are repugnant to the rights and privileges contained in this constitution and the declaration of rights, &c, agreed to by this Convention."

and this provision was carried forward in some form by all subsequent Delaware constitutions.

"The 2nd Amendment was not necessary to prevent the individual states from depriving people of the well-known common law right;..."

It may not have been necessary, but that is an integral part of its construction.

like the meaning of the word regulate and it various forms (which i seriously suspect have drifted so far because of the interstate commerce clause and the 2nd amendment) the rules of comma usage have changed somewhat in the past 230 years. but do you seriously intend to claim that just because the introductory clause seems a bit awkward to modern readers that the phrase "the right of the people" and/or the words "the people" mean something different than they do in the 4th, 9th & 10th amendments and all of the places they appear in the body of the constitution?

"... it was designed to prevent the National government from removing the ability of the states to have an organized military force in the militia."

if it said "Well circulated Newspapers, being necessary to the education of an informed State, the right of the people to own and operate printing presses shall not be infringed.", would anyone be claiming that it only protected the right of the states to operate Ministries of Propaganda? or that individuals be prohibited from accessing the Internet until they have been licensed, registered, and jumped through any other arbitrary hoops the government wishes to impose, if at all?

You go off the rails at the point where you claim that the right to keep and bear arms is vested in the state constitutions and that it was only the 14th Amendment that individualized/universalized it.

That's exactly backward. The 2nd Amendment clearly describes it as a right of "the people," and that term has specific meaning in constitutional context.

It may have taken the 14th Amendment to universalize freedom of speech, religion and assembly, but the right to keep and bear arms was universally protected against all levels of government right out of the gate.

Sorry but you need to go back and look at the journals of the 1st Congress and examine the debates. The amendment was clearly only to prevent the Congress from making such laws; power over the right to firearms was established at the State level. The difference in wording between the 2nd and 1st amendments had far less significance at the time than you seem to believe; mostly the amendment was copied from language in various state constitutions conflated together.

Debate records in the 1st Congress make it pretty clear that the purpose of the amendment was to safeguard the right of the states (which is why the militia counterargument is only prevalent during ratification debates in NY from the anti-Federalists).

Steve, this is the best analysis of the 2nd Amendment I've read. It taught me some things I didn't know about it. It just never occurred to me to question the assumption in the current debate that the founders were prescribing a right (however it was to be understood) for everyone in every state and that they were not leaving it up to the states to define the right for personal use. I also appreciate that you didn't relegate the portion of the amendment about a well regulated militia to irrelevant and meaningless filigree. Very well done.